NC judge denies Duke Energy motion to seal coal ash docs

A North Carolina judge on Friday denied Duke Energy’s motion seeking to shield records related to groundwater pollution leaching from 33 coal ash dumps in the state while a separate federal criminal investigation is ongoing.

This aerial photo taken at Duke Energy?s Cape Fear Plant on March 10, 2014, by the environmental group WaterKeeper Alliance shows a large crack in the earthen dam holding back millions of tons of toxic coal ash and contaminated waste water. North Carolina regulators inspected the site twice in the following days, but now concede they failed to notice the crack clearly marked with metal stakes and bright orange streamers. State officials say they knew nothing of the potential hazard until Duke reported the crack on March 20, after the company was cited for illegally pumping 61 million gallons of contaminated wastewater into the Cape Fear River. The crack has since been repaired. (AP Photo/WaterKeeper Alliance, Rick Dove)(Photo: Rick Dove, AP)

RALEIGH – A North Carolina judge on Friday denied Duke Energy’s motion seeking to shield records related to groundwater pollution leaching from 33 coal ash dumps in the state while a separate federal criminal investigation is ongoing.

Superior Court Judge Paul Ridgeway’s ruling came after Duke defense lawyer Jim Cooney scaled back the company’s request to restrict access to documents in a civil case filed last year by state regulators over environmental violations.

Duke initially argued public disclosure of company documents handed over through the discovery process could taint the criminal probe. A federal grand jury in Raleigh has issued at least 23 subpoenas to state environmental officials and Duke following a Feb. 2 coal ash spill that coated 70 miles of the Dan River in toxic gray sludge.

A coalition of environmental groups has intervened in the state’s case against Duke. Cooney expressed concern that lawyers for those private groups might file sensitive company documents as exhibits in court briefs or introduce them as evidence in open court hearings, thereby making them available to the media.

Cooney asked Ridgeway to approve a “prophylactic” order to seal the records and prevent news stories that might present the company in an unfavorable light and potentially influence members of the grand jury.

“Duke intends to fully cooperate with the government of the United States in this investigation because we haven’t violated any laws,” Cooney said. “We want a fair, unbiased and impartial grand jury investigation.”

Frank Holleman, a lawyer for the Southern Environmental Law Center, told the judge there was no legal justification for limiting the typical public disclosure of information in the civil case just because Duke is also the target of a criminal probe.

Holleman pointed out that his group had filed a motion seeking documents from Duke in August and that the company had failed to yet hand over any. He said the company’s latest courtroom maneuvering was just another attempt to delay the case.

“What he wants to do is put a blanket over these documents … as if they somehow get stamped Top Secret grand jury materials,” Holleman said, referring to Cooney. “There is absolutely no reason the public should not be aware of information that comes up in this case.”

Ruling from the bench, the judge agreed with Holleman to keep the documents public. But Ridgeway also said Duke could later seek to seal some of the records as trade secrets on a case-by-case basis if they could show him such a designation was justified.

Ridgeway also approved a request from the N.C. Department of Environment and Natural Resources to withdraw an earlier proposed settlement that would have allowed Duke to settle environmental violations at ash dumps near Charlotte and Fayetteville. In the wake of the Dan River spill, the agency now says it intends to take Duke to court.